I THE DISCRETION
159 I turn now to matters relevant to the exercise of the discretion to extend the limitation period up to a period of three years.
160 Of the opponents, only Ms Wilkinson dealt with the issue of discretion by submitting the Court should not exercise its discretion to extend the limitation period beyond 14 days after the DPP discontinued its prosecution of Mr Lehrmann.
161 Ms Wilkinson made a number of related points, each of which I have considered. At the risk of oversimplification, they can be grouped into five main propositions: first, Mr Lehrmann did not issue a concerns notice, demand or complaint against Ms Wilkinson within the limitation period, and had he done so, Ms Wilkinson would have been on notice and could have "arranged her affairs" accordingly; secondly, Mr Lehrmann's causes of action against Ms Wilkinson had, upon expiry of the limitation period, been "extinguished"; thirdly, Mr Lehrmann made a forensic decision not to issue a concerns notice to Ms Wilkinson in December 2022, despite sending a letter to Network Ten, News Life and Ms Maiden; fourthly, and relatedly, Mr Lehrmann was under an obligation to take genuine steps to resolve the dispute against Ms Wilkinson before commencing proceedings against her, but he did not do so; and fifthly, Network Ten, as Ms Wilkinson's employer, is vicariously liable and Mr Lehrmann can proceed with his case in the same manner (and with the same outcome), irrespective of whether proceedings are maintained against Ms Wilkinson (and there is a greater presumed prejudice in delay as compared with a corporate respondent).
162 None of these points are irrelevant, but comments ought to be made in relation to the weight of each of them.
163 I do not think the failure of Mr Lehrmann to issue a concerns notice to Ms Wilkinson is as significant as suggested. Mr Lehrmann issued a letter of demand to Network Ten on 16 December 2022, which was forwarded to Ms Wilkinson that same day. The letter contained a settlement offer, which was not accepted, and it was consequent upon that refusal that Mr Lehrmann instituted these proceedings. While in some cases it may be possible to demonstrate substantive prejudice flowing from a claimant's decision to issue a concerns notice to respondent A, and not respondent B, in circumstances where there was some evidence steps were taken by respondent B on the assumption an election had been made to commence against only against respondent A, there is no evidence this is such a case.
164 In written submissions, and again during the course of oral submissions, relying on observations of McColl JA in Barrett (at 495 [84]), it was suggested that depriving Ms Wilkinson "of the benefit of [Mr Lehrmann's causes] of action having been extinguished was a relevant factor" (emphasis added) to the exercise of discretion. I raised with senior counsel for Ms Wilkinson whether this characterisation was necessarily correct, notwithstanding the applicable surrogate federal law relating to limitation picked up by s 79 of the Judiciary Act 1903 (Cth) in these cases is the Limitation Act of New South Wales.
165 In making this comment I recognised that unlike the traditional position at common law and legislative choices made elsewhere in Australia, in New South Wales, the expiry of a period of limitation extinguishes the right and does not just bar the remedy (see ss 63-67 of the Limitation Act). For certain purposes, this can be a distinction with a real difference. For example, as Gummow and Kirby JJ explained in The Commonwealth v Mewett (1997) 191 CLR 471 (at 534-535), in the usual case, a bar does not go to the "jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded". Hence, absent an appropriate plea, the matter of the statutory bar does not arise for consideration. Their Honours suggested (at 534-535) that this might not be correct "where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right".
166 But the reality of the distinction does not mean it is correct for present purposes to place too much emphasis upon the fact that Mr Lehrmann's causes of action have been "extinguished" in the sense in which that word is usually understood. Indeed, different views have been expressed about the appropriate legal characterisation of the position in circumstances such as the present. In Mewett, Dawson J expressed the following view (at 509):
When the statutory scheme is examined as a whole, it is apparent that, whilst a period of limitation for a cause of action may be extended under the New South Wales Act, the cause of action is not extinguished by s 63(1) because there is no expiration of a limitation period fixed under the New South Wales Act. Such a limitation period remains to be determined by way of an application for extension of time. The cause of action continues in the meantime, statute-barred under s 14(1) but not extinguished under s 63(1).
167 Toohey J (at 517) and McHugh J (at 533) took a different view (consistent with the views expressed by the Court of Appeal of New South Wales) being that upon an extension being granted the earlier extinguishment is annulled, and the right is to be treated as though it had never been extinguished. I was not assisted by any submissions as to this characterisation issue, but it seems to me to be peripheral. The essential matter for present purposes is that if there was an "extinguishment", it was a state of affairs always subject to an application for extension and Ms Wilkinson's characterisation of the legal position, although probably accurate, does not add a great deal. Put simply, Ms Wilkinson's legal position upon expiry was always subject to the making of an extension application by Mr Lehrmann.
168 Dealing generally with the failure to take pre-litigation steps to resolve the dispute with Ms Wilkinson, it is unclear why a decision was made not to issue a concerns notice or letter of demand to Ms Wilkinson in December 2022; it may be no more complicated than Mr Lehrmann having no intention of ever settling with Ms Wilkinson. But despite Mr Lehrmann only sending such a notice to the other opponents, this did not prevent Ms Wilkinson making an offer in response to the statement of claim when it came to her attention if she was disposed to do so. I assume she did not do so because Ms Wilkinson has, through her senior counsel, given every indication she wishes to defend the Network Ten Proceeding stoutly. In the absence of any evidence, it is a little difficult to see how not taking pre-litigation attempts to resolve the dispute with Ms Wilkinson has occasioned prejudice of any significant weight. What is meant by Ms Wilkinson "arranging her affairs" on the basis she was not going to be a party is not only unsupported by evidence, but is difficult to understand, even in the abstract.
169 Mr Lehrmann was obliged under s 6 of the CDR Act to identify the steps he had taken to resolve the issues prior to the commencement of proceedings. The Court may, in performing functions or exercising powers in relation to civil proceedings before it, take account of whether Mr Lehrmann took genuine steps to resolve the dispute: s 11 of the CDR Act. It is appropriate that I do so; it just does not seem to take the matter very far, given settlement prior to litigation was unlikely and the absence of any evidence of other specific prejudice.
170 Mr Lehrmann took somewhat longer than he did with the other opponents to make plain he was suing Ms Wilkinson. This does put her in a different category, but again I do not think it matters greatly.
171 For present purposes, I will proceed on the asserted basis that Network Ten is vicariously liable for any damages that flow from Ms Wilkinson's wrongs should Mr Lehrmann be successful. This means that not extending the period as against Ms Wilkinson would cause less prejudice to Mr Lehrmann than would otherwise be the case; but joining the individual alleged wrongdoer perceived by the claimant as responsible for the hurt to feelings and damage to reputation, is far from uncommon. Subject to responsible use of court resources, a legitimate purpose of litigation is seeking public vindication against an individual perceived as having committed an actionable wrong. The "greater presumed prejudice" asserted on behalf of Ms Wilkinson, as compared with a corporate respondent, was not really articulated. If it relates to costs, there is no evidence before me as to why Ms Wilkinson is separately represented from the entity she contends is vicariously liable for any damages she is liable to pay should Mr Lehrmann prevail. There may be a very good reason for separate representation, but the evidence does not presently reveal it. To avoid any confusion, it is worth recording I have taken the submission made by Ms Wilkinson as to Network Ten's vicarious liability for any damages award made against her at its highest; it should not be presumed this submission is necessarily correct as a matter of law.
172 Returning to delay generally, I note no reliance was placed by Mr Lehrmann on the fact that the commencement of proceedings against all the opponents, including Ms Wilkinson, was later than would otherwise have been the case but for the Chief Justice being required to defer the commencement of the criminal trial for the reasons her Honour gave in R v Lehrmann (No 3) (see [89] above). Any delay in the trial necessarily meant a delay in resolving the criminal proceedings and hence any defamation action. In the absence of submissions on this point, however, I have not had regard to this matter in the exercise of my discretion.
173 I have not heard any evidence touching upon the underlying allegations made by any party or formed any views as to their merits. It has been unnecessary for me to make any general findings as to credit. For all I presently know, Mr Lehrmann's substantive case may be good, or it may be bad. For present purposes, what is relevant is that it is not suggested by any of the opponents that the issues joined do not give rise to triable issues such that it would be inutile to grant an extension until commencement.
174 As I noted earlier, while the discretion under s 56A(2) is a broad one, it is confined by the duty to act judicially and by reference to the scope and purposes of the Limitation Act. In exercising that duty, scope is left to give effect to the justice of the case, including by looking to every relevant fact and circumstance: Barrett (at 495-496 [87] per McColl JA).
175 The discretion is exercised in the context that it was not reasonable in the circumstances for Mr Lehrmann to have commenced actions in relation to the impugned matters within one year. It follows from the above, to the extent it mattered (and all parties were in unison in saying it did not), I would also have been satisfied it is "just and reasonable" to allow the actions to proceed in all of the circumstances of the case (to adopt the present words of s 56A).
176 Added to the mix is the weighty consideration that Mr Lehrmann was not dilatory following the DPP's announcement on 2 December 2022 that charges had been withdrawn. In the nine-week period following the DPP announcement and prior to commencing proceedings, Mr Lehrmann acted sufficiently promptly and reasonably by, among other things, conferring with his solicitors on 12 December 2022, issuing a letter of demand (other than in respect of Ms Wilkinson) and then corresponding with the solicitors for Network Ten and News Life in January 2023 in respect of the settlement offer contained in the letter. Even though he did not engage with Ms Wilkinson prior to commencement, the logic of Ms Wilkinson's submissions is that he should have started the case against her by 16 December 2022. This does not make sense. It would have been quite odd that in order to safeguard his position, Mr Lehrmann was required to commence against Ms Wilkinson in December, and then commence a separate proceeding in the new year after the correspondence with the solicitors for Network Ten had concluded (with the result that three proceedings would have been commenced against the opponents, including two making identical allegations).
177 Taking all the submissions made by Ms Wilkinson into account both individually and collectively, the weight of the considerations in favour of extension outweigh those that, at least to some extent, militate against such a course. Accordingly, the appropriate exercise of discretion by reference to all the circumstances, including the truncated limitation period and the scope and purposes of the Limitation Act generally, is to extend the limitation period in the Network Ten Proceeding as against Ms Wilkinson up until the time when it was commenced.
178 The same goes for the balance of the opponents. As noted above, they did not really develop any reason as to why an extension should not be granted to the time of commencement in the event I was against their submissions as to the evaluative assessment of circumstances during the limitation period.